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What Happens If You Refuse to Take a DUI Test in California?
California drivers often wonder what happens if they refuse to take a DUI test. If someone who had a few alcoholic drinks decides to drive home but think they would probably fail a breath test, should they say no if a police officer asks them to take one?

In California, officers administer roadside breath tests for alcohol using a breathalyzer. These handheld breathalyzer tests are known as Preliminary Alcohol Screening (PAS) tests. The law does not require drivers to take a PAS test if they have not been arrested. Drivers can tell police officers that they decline to take a PAS test. The only exceptions are drivers under age 21 or drivers on DUI probation, who are required to take a PAS test.

If a driver declines to take the PAS test on the roadside, the police officer can still arrest him or her for DUI. After a driver is arrested, he or she must take a breath or blood test for the presence of alcohol. California's "implied consent" law requires all drivers who are lawfully arrested on DUI charges to submit to chemical testing for blood alcohol concentration.

Drivers can choose whether to take a breath or a blood test post-arrest. Many lawyers suggest choosing the breath test over the blood test if the driver thinks he or she has a BAC of 0.08% or more because the breath test is easier to challenge in court.

The police must explain to an arrested driver that he or she will be fined, lose his or her driver's license, and face potential jail time if convicted of a DUI. The police must explain that the driver does not have the right to speak to an attorney prior to taking the test and explain that a test refusal can be used against the driver in court.

If a driver still refuses to take a post-arrest chemical test, he or she can receive a one-year driver's license suspension. If this is the driver's second DUI with a refusal within the past ten years, he or she can receive a two-year license revocation. If this is the driver's third DUI with a refusal within the past ten years, he or she can receive a three-year license revocation.

In general, drivers who refuse to take a chemical test cannot get a restricted license (hardship license or critical need license). A driver who took a post-arrest breath or blood test can apply for a restricted driver's license that allows him or her to drive to work and to the required alcohol program.

Call DUI Lawyer Virginia L. Landry Today

At the Law Offices of Virginia L. Landry, we pride ourselves on keeping up with recent developments in criminal law so that we can better represent you in court. Whether you refused a DUI chemical test or face other DUI-related charges, we are here to help you through the court process. We will assess your situation, educate you about your legal rights, and develop the strategy most appropriate for your case.  Reach us at the Law Offices of Virginia L. Landry today by calling 1-877-384-7833 (1-877-DUI-Queen) or visit to schedule an appointment to discuss your case. 
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How a California Criminal Case Usually Proceeds
California criminal cases usually follow a series of steps starting with an arrest and ending with a plea bargain or with trial and sentencing. People facing criminal charges can familiarize themselves with how most criminal cases proceed to help them understand the next steps in their own cases.

The Arrest and Booking

Most criminal cases begin with an arrest made by a police officer. A police officer can arrest someone he or she observes committing a crime or can use an arrest warrant issued by a judge. Police officers can also make an arrest if they have probable cause to believe a person has committed a crime. The officer will take the person he or she arrested and book them at the police station. During booking, the police take the person's photograph and fingerprints, secure personal belongings, and detain the person, usually in a holding cell.

Charges Filed

After an arrest, the prosecutor, also called the district attorney, decides whether to file criminal charges against the arrested person and if so, which types of charges to file. The District Attorney has up to one (1) year to file misdemeanor charges and three (3) years to file felony charges.

In a separate process, people who are arrested on DUI charges should contact the DMV and schedule an administrative DMV hearing to try and save their driving privileges. One must act quickly and call the DMV within ten (10) days after the arrest to schedule a hearing.


The arraignment refers to the first court appearance before the judge. The judge will read the charges filed by the District Attorney against the individual - known in court as a defendant - and advise the defendant of his or her rights. The judge will ask the defendant to enter a plea. The defendant may enter a plea of "not guilty", "guilty", or "no contest" to the charges. If the defendant pleads guilty or no contest, he or she will be sentenced. If the defendant pleads not guilty, the post-arraignment process begins.

At the arraignment, the judge will determine whether the defendant will be granted bail and schedule future court dates. Defendants who are granted bail can pay the bail amount and be released from jail. If the defendant is released, he or she must attend future court dates. Sometimes, defendants are released on their own recognizance, meaning they do not have to post bail but must promise to attend court.


After the arraignment, some defendants are able to settle their cases or get them dismissed, often with the help of an attorney. In felony cases, if the case does not settle or get dismissed, the judge will hold a preliminary hearing in court to decide if there is enough evidence for the defendant to stand trial for the criminal charges.

In both felony and misdemeanor cases, the prosecutor and the defendant's attorney exchange information and documents in a process called "discovery". They can file motions with the court to exclude evidence from trial, to dismiss the case, or for other reasons. Often the prosecutor and the defendant's attorney talk about resolving the case without going to trial. Finally, the defendant can change his or her plea to "guilty" or "no contest".


If the defendant's case does not settle or get dismissed before the trial date, then the defendant has the right to have a jury decide his or her guilt or innocence. At trial, the prosecutor must convince the jury that the defendant is guilty of the charges filed against him or her beyond a reasonable doubt.


If the jury decides that the defendant is guilty of some or all of the charges, or if the defendant pleads guilty, the defendant will attend a sentencing hearing in court. Once the judge orders the terms and conditions, the defendant must serve his or her sentence.

Call DUI Lawyer Virginia L. Landry Today

If you or a loved one is arrested, there are often defenses available to help you get the charges reduced or avoid a conviction. Our experienced California criminal defense lawyers will work quickly after an arrest to protect your rights in criminal court proceedings. We know how to raise the defenses needed to fight the charges and clear your name. Call us today at 1-866-902-6880 or visit us online at
A Note To Our Clients
  • To our current clients: Thank you for the opportunity to serve you during this difficult time.
  • To our future clients: We look forward to working with you in your time of need.
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Virginia Landry

Virginia L. Landry received her undergraduate degree from Northern Arizona University in 1982. She then went on to pursue her law degree from Western State University, graduating in 1988. The following year, Ms. Landry opened her own Law Office. As a nationally recognized Board Certified DUI Defense Attorney Specialist, Orange County Criminal Defense Attorney Virginia L. Landry, is able to practice law within all the California state courts and the Central District Court of the United States.


As a criminal defense lawyer with years of litigation and trial experience, Ms. Landry is fully prepared to handle criminal cases involving violent crimes, white collar crimes, theft crimes, sex crimes, juvenile crimes, drug crimes, weapons charges, and domestic violence. Attorney Landry has successfully represented clients facing a variety of complex misdemeanor and felony charges.

In addition to her current position as Regent for the National College for DUI Defense (NCDD), Virginia serves on the Board of Directors for the California DUI Lawyers Association  as its Secretary. Virginia is one of only a handful of attorneys across the nation who is Board Certified in DUI Defense. She has also received her  certificate of instruction , successfully training participants in DWI Detection and Standardized Field Sobriety Testing Student and Instructor courses.


Virginia Landry served on two committees and was on the Orange County Bar Association's Board of Directors for three years, is a past President and current member of the West Orange County Bar Association, is currently a Sustaining Member for the California Attorneys for Criminal Justice and is a member of the National Association of Criminal Defense Lawyers serving as Co-Chair of the DUI / DWI Committee. Other local bar associations include the North Orange County Bar Association, The Newport Harbor Bar Association, the South Harbor Bar Association, the Western State University Alumni Association and the Northern Arizona University Alumni Association.